It’s a common misconception that all your efforts to create a comprehensive estate plan are focused on what happens after your death. That is very much not the case, and it’s a dangerous misconception to plan by.

Estate planning does not equate to death planning. There are several ways in which your estate plan can drastically impact you and your loved ones’ quality of life well before you pass away. That is why it’s also crucial that your plan includes up-to-date provisions for what will take place if you don’t die.

The relationship between incapacity and your estate plan

Many people become legally incapacitated, where they lose the ability to make their own legal decisions on either a temporary or permanent basis. This legal incapacity is not the same as being disabled for social security or workers compensation purposes. Rather, it is the result of coma, cognitive impairment caused by degenerative illnesses, or other situations in which a person is no longer able to make their wishes known due to loss of physical or mental function.

As an Estate Planning Lawyer, I often find myself advising my clients, who are adults and children of elderly parents, about managing their parents’ finances and medical decisions.

Let’s consider Ira*, struggling with memory loss – so prevalent among the elderly – which is one of the primary reasons adult children are called to take over finances.  Ira’s situation was particularly difficult, and compounded, because he couldn’t remember things, such as how much he owned, what or who he owed, or when a bill was due.

So, what if you don’t die and are instead in need of help because you can’t manage your finances any longer? Planning early with a comprehensive, trust-based estate plan will include the necessary documents to make sure your wishes are carried out while you’re alive and well, or, if you’re alive, but not so well — even if you aren’t able to express those wishes at the time, and, after you’re gone.

You need a plan that will protect your privacy, free you from court interference, help you protect and manage your assets, save you money on taxes, and enable you to name the people you trust the most to act on your behalf. Without a comprehensive incapacity plan in place, a judge can appoint someone to take control of your assets and make all personal and medical decisions for you through a court-supervised guardianship or conservatorship. You and your loved ones could lose valuable time, money, and control, until you either regain capacity or die. 

The components of your plan that impact incapacity

 ●       A Revocable Living Trust: In the typical situation, you will be the trustmaker, the trustee (to manage the trust), and the beneficiary of your revocable living trust. But, if you ever become incapacitated, your designated successor trustee will step in to manage the trust assets for your benefit.

●       Powers of Attorney: Whether medical or financial (you should have both in place), powers of attorney give your agent the authority to pay bills, make financial decisions, manage investments, file tax returns, mortgage and sell real estate, and address other financial matters that are described in the document. Powers of Attorney come in two forms: “durable” and “springing.” A durable power of attorney goes into effect as soon as it is signed, while a springing power of attorney only goes into effect after you have been determined to be mentally incapacitated. Keep in mind that medical powers of attorney can also be called health a care proxy or advance directive.

●       Living Will: This legal document memorializes your medical decisions about end of life care. You can make your goals clear to address issues such as keeping you as comfortable as possible, or not extending your life with useless medical heroics.  And, if you are Jewish and observant, you can designate a reliable Rabbinic Authority in a Halachic Healthcare Proxy/Living Will.  All of these legal documents are designed to provide a meaningful sharing of your wishes, to help guide your decision makers.

●       HIPAA Authorization: Federal and state laws dictate who can receive medical information, without the written consent of the patient. This legal document gives your doctor, or other health care provider, the authority to disclose your health information to the agent selected by you.

●       Nomination of Guardians: You can nominate guardians for yourself as well as for minor children. You may also want to create a legal pet trust if you have strong feelings about who you’d like to care for your animals, should you become incapacitated.

Don’t let a lack of incapacity planning damage your quality of life and cause undue stress for your loved ones. Make sure you have an estate plan and that it has solid, up-to-date provisions in place, making your wishes, regarding incapacity, plain and clear. You can send me an email at [email protected] or call 718.514.7575 for more information.

MONET BINDER, ESQ., has a practice in Queens, New York, dedicated to protecting families, their legacies and values. All halachic documents are approved by the BAIS HAVAAD HALACHA CENTER in Lakewood, under the direction of Rabbi Dovid Grossman and the guidance of Harav Shmuel Kaminetsky, shlita, as well as other leading halachic authorities. Monet Binder can be reached at 718-514-7575 or email [email protected]

The information in this article is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.